B3/2002/0056
Neutral Citation Number: [2002] EWCA Civ 430
IN THE SUPREME COURT OF JUDICATURE                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(MR RECORDER HOWELL)
                                   Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Thursday, 14th March 2002
B e f o r e :

LORD JUSTICE SEDLEY

-and-

LADY JUSTICE HALE

- - - - - - - -

ROBERT MESSAM
Claimant

- v -

THE CHIEF CONSTABLE OF THE BEDFORDSHIRE CONSTABULARY
Defendants

- - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - -
MR J MCNALLY (instructed by Taylor Hollinshed, Cheshir CW1 2EL) appeared on behalf of the Appellant
The Defendant did not attend and was unrepresented
- - - - - - - -
J U D G M E N T
Thursday, 14th March 2002
1.	LORD JUSTICE SEDLEY: Mr McNally applies to the court today for permission to appeal against a decision given against his client, the claimant, by Mr Recorder Howells in the Chester County Court on 12th December 2001.
2.	The application follows a first refusal of permission to appeal by Hale LJ on the papers. The appellant's notice is two days out of time. It is clear that that has occurred in spite of the best endeavours of the lawyers concerned because of unavoidable difficulties with, first of all, clearance from the Legal Services Commission and then the Christmas holidays, and for my part I would enlarge time and consider this application on its merits.
3.	The case concerns a collision between a Citroen Saloon car in which the claimant was a front-seat passenger and a police Range Rover equipped as an armed response vehicle (ARV) and prominently marked. It was seeking out the Citroen on the day in question because its occupants were suspected, entire mistakenly as it turned out, of serious armed crime. In the circumstances, however, it was common ground that the police had reasonable grounds to seek and stop the vehicle. It was equally common ground that they were not entitled to go about this in a manner which unnecessarily endangered life or limb (see Marshall v Osmond [1983] 1 QB 1034.
4.	The collision in relation to which the action was brought occurred when the ARV, seeing the Citroen travelling towards it, crossed to the opposite carriageway in order to block its path with lights on and siren sounding. The driver of the Citroen, Michael Robinson, slowed down (so the Recorder found) until the cars were about 6 feet from one another. A collision then occurred in which the claimant was injured. In spite of a series of terminological muddles, first on the part of reporting police sergeant and then on the part of Recorder himself, it is quite clear that the impact was nearside to nearside.
5.	Counsel at the hearing presented the Recorder with two factual scenarios recorded in this way in the judgment (page 4):
“Factual Scenario 1
If the ARV rammed the Citroen Visa at speed, the Defendant cannot succeed.
Factual Scenario 2
If the Citroen Visa stopped and the ARV stopped, but then the Citroen Visa tried to get away, the Claimant cannot succeed.
As I understand it, the Second Scenario covers the case where, as the Defendant alleges, the ARV had to block the escaping Citroen Visa. On this basis, the agreement of Counsel provides a helpful (and, in my judgment, correct) summary of the factual dispute in the light of the relevant law.” 
6.	It is, I think, a misfortune, and I suspect the claimant's counsel thinks so as well now, that the choice was put to the Recorder in this polarised form. Plainly the two scenarios were not exhaustive of the factual possibilities. There was, for instance, the plain possibility that the ARV driver had simply misjudged the relative velocities and positions of the two vehicles and, without ramming the Citroen, had come to a halt so late as to cause the Citroen to veer, but in doing so to collide with the police vehicle. If that had been the situation the defendant would have been liable.
7.	What the Recorder found, however, was this (at the concluding paragraph on liability):
“The whole episode from the initial setting out of the ARV to the collision was over in minutes. The time from when the ARV moved into the Citroen Visa's carriageway until the collision was only a few seconds. I consider that the Citroen Visa ought to have stopped. I do not believe that it did so, although it did slow down. I believe that the ARV did stop. On the basis of the whole of the evidence I believe that the Citroen Visa did suddenly swerve to the right. I believe (and, in my judgment, this is the crucial point) that PC Fensum and APS Ralston then genuinely and reasonably believed that the driver of the Citroen Visa in so swerving was intending to escape from the Police. On this basis such officers were, in my judgment, entitled to block such move by the Citroen Visa as they did. I am satisfied as to Factual Scenario 2 (as extended by Mr McNally). The fault lay squarely on the driver of the car, Mr Michael Robinson in swerving suddenly as he did.” 
8.	It can be said at once that the Recorder was not trying the question of Mr Robinson's liability: he was trying the question of the police's liability, and it was not necessary that he should inculpate Mr Robinson. But his finding was that Mr Robinson misjudged the stop and veered to avoid the police car, making it legitimate for the police car to swing into the Citroen's path and halt it by colliding with it. Accordingly, the claimant failed to recover any damages.
9.	The first ground which Mr McNally advance, but only tentatively, is that the judge behaved unfairly in characterising the absence from the proceedings of Mr Robinson as “extremely suspicious”, not because it was not extremely suspicious (I would agree with the Recorder that it was), but because it appears to the claimant that the recorder used this against him in order to cast doubt on his case. I see no evidence in the judgment that that is what happened. I do not think it meant any more than that Mr Robinson was probably protecting his own back from the responsibility which not only the police but the claimant themselves contingently were trying to lay on him. What the Recorder had to do was what he did, namely try the case without Robinson's evidence.
10.	The remaining grounds which Mr McNally advances are that the judge applied the second scenario to the quite different facts which he had found, and that he had reached those findings of fact by impermissible means. However, realistically and helpfully, Mr McNally has accepted that he can only get to his critique of the judge's findings of fact if he can get past the single sentence which I have quoted and which read):
“I consider that the Citroen Visa ought to have stopped.”
11.	That, in Mr McNally's submission, is a finding which falls short of the proposition that the Citroen Visa could reasonably have stopped, and it is only if the Citroen could have stopped that the police can be absolved of responsibility for the crash which occurred.
12.	I agree with the latter proposition, and I would, for my part, have considerable anxieties about the way that the evidence was analysed if Mr McNally were able to reach this point of his argument; but I do not consider that he can. In the phrase “the Citroen Visa ought to have stopped”, there plainly implicit a judicial view that the driver could reasonably have done so. There would be no point in making the finding that the car ought to have stopped unless it were the Recorder's view that stopping was a reasonable possibility for the driver. Once that point is reached the necessary conclusion, given the Recorder's further findings, is that the ARV had halted in sufficient time and in a sufficient position to enable the Citroen Visa to stop, and that its failure to do so lay in Mr Robinson's and not in the police's hands.
13.	I would however mention what it is that, but for this block, Mr McNally would have wanted to address. In particular there are two things which he would have argued are omitted from the judgment. One is the plan drawn by police officers who attended the scene and who apparently found the Range Rover ARV aligned pretty much with the road. If that were right it was entirely inconsistent with the account given at trial, though not earlier, by the police that they had restarted the ARV and driven it into the veering Citroen's path. The other (but I have dealt with this already) was the location of the damage which the Recorder seems to have thought was to the off-side of the Citroen but plainly was to its nearside.
14.	Evidence such as this no doubt was capable of demonstrating either that the police car had reached a halt too late to enable the Citroen to avoid it, or that Mr Robinson, though able to avoid the police car, had decided to try to make a getaway. But the plan certainly was not consistent with the evidence that the ARV had tried to cut off the Citroen's escape.
15.	Of the first two possibilities the first would have resulted in a finding against the defendant; the second would not have done. They are, however, for the reasons I have given, precluded as a basis of further argument on appeal by the finding that the fault for the collision lay in the failure of the Citroen to stop.
16.	In those circumstances it did not actually matter whether Robinson had tried to get away or simply been panicked into making the manoeuvre which resulted in the collision. In either case the Recorder's findings absolve the police of fault. It may well be that the defendant chief constable was fortunate to secure such a finding in the face not only of some contradictory evidence from his own officers but of the ACPO manual, to the crucial paragraph of which (8.4.3) Mr McNally has drawn our attention today. But it was the Recorder's job as a tribunal of fact to decide what to make of these inconsistences, and while one would most certainly have wished for fuller reasoning than one finds in the single crucial paragraph that I have quoted, in particular a less elliptical expression of the single crucial finding about the failure to stop, the judgment contains enough in the way of tenable findings to deprive an appeal of any real prospect of success.
17.	For those reasons, though not without misgiving, I would refuse permission to appeal.
18.	LADY JUSTICE HALE: I agree, although I would also associate myself with two sentiments. One is that Mr McNally has argued this application with great common sense and great attractiveness (if I may put it that way), but also on any view of the matter the claimant was not to blame for this accident or for the injuries which he sustained. It is in the highest degree unfortunate that the result of the recorder's finding is that he is without compensation. But that the recorder was entitled to make the finding that he did there can be little doubt. For that reason an appeal would have no real prospect of success.
(Application refused; public funding assessment).